Judgment

RAGHUBAR DAYAL, J. : These are three petitions under Art. 32 by the petitioners, which is a partnership firm, praying for a declaration that S. 2 of the Madras General Sales Tax (Special Provisions) Act 1963 (Act No. 11 of 1963) hereinafter called the Act, is ultra vires the Constitution and of no effect and for a writ of mandamus directing the State of Madras to refrain from enforcing any of the provisions of that section. Each of the petitions relates to a particular assessment year.

2. The petitioners are dealers in skin carrying on business at Shenbakkam, Vellore, North Arcot District, in the State of Madras. They purchase raw skins from places both within and outside the State of Madras, tan the same and sell them through their agents in Madras. They were assessed to a certain amount of sales-tax, in accordance with the provision of the Madras General Sales Tax Act 1939 (Madras Act IX 1939) and R. 16(2) (ii) of the rules framed thereunder viz. the Madras General Sales Tax (Turnover and Assessment) Rules, on the turnover of hides and skins purchased in the untanned condition outside the State, but tanned within the State, with respect to each of the assessment years 1955-56, 1956-57 and 1957-58. The tax was assessed at 3 pies per rupee on the price of tanned hides and skins for the years 1955-56 and 1956-57 and at the rate of 2 per cent on the turnover for the year 1957-58.

3. The petitioners challenged earlier the validity of R. 16 on the ground that it contravened Art. 304 of the Constitution. Their contentions were negatived by the Sales Tax Authorities. The petitioners then filed writ petition No. 148 of 1959 in this Court against the assessment of tax for the year 1957-58. This Court allowed it as it had held on November 22, 1962 in Firm Mehatab Majid and Co. v. State of Madras, that R. 16 (2) of the rules was invalid as it discriminated against the imported hides and skins which had been purchased or tanned outside the State. Subsequently, the validity of R. 16(1) of the rules was challenged in this Court in writ petitions Nos. 43 and 44 of 1963 by M. J. Jamale Mohideen and Co. Those writs were filed on March 5, 1963 and it was contended that sub-rule (1) standing by itself was ultra vires the Constitution as it had the effect of selecting for discriminatory taxation only raw hides and skins and leaving untaxed sales of tanned hides and skins in Madras.

4. On June 10, 1963, the Governor of Madras promulgated Madras Ordinance No. 3 of 1963. The explanatory statement attached to the Ordinance stated :

"The decision of the SC (in W. P. 147 of 1959 Firm A. T. B .Mehtab Majid and Co. v. The State of Madras, (AIR 1963 SC 928)) will result in claims for refund of tax being preferred by dealers in hides and skins already assessed under the impugned rule thereby resulting in huge loss of revenue and will also result in administrative complications. It is therefore considered necessary to avoid these difficulties by removing the discrimination in the matter of levy of tax on hides and skins pointed out by the SC and to provide for the assessment or reassessment and collection of the tax from the dealers in hides and skins without any discrimination by leaving the tax in all cases on the basis of the purchase price of the hides and skins in the untanned condition."

The relevant provisions of the Ordinance read:

"2. Special provisions in respect of tax on sale of hides and skins in certain cases :

1. Notwithstanding anything contained in the Madras General Sales Tax Act., 1939 (Madras Act IX of 1939) (hereinafter referred to as the said Act), or in the rules made thereunder (hereinafter referred to as the said rules), the following provisions shall apply in respect of tax on sale of hides and skins during the period commencing on the 1st April 1955 and ending on the 31st March 1959.

(i) In the case of raw hides and skins, the tax under the said Act shall be levied from the dealer who is the last purchaser in the State and not ex